Kerala High Court
Smt. Shameelamahin vs The Union Of India on 8 November, 2024
Author: V.G.Arun
Bench: V.G.Arun
2024:KER:84897
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
WP(C) NO. 25131 OF 2024
PETITIONER/S:
1 SMT. SHAMEELAMAHIN
AGED 42 YEARS
W/O MAHIN, AZAD HOMES, EVRA 412B, COTTON HILL
VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695014.
2 M/S JAMEELA ABDUL SALAM FOUNDATION
AGED 52 YEARS
PUTHENVEEDU HOUSE BUILDING, ERUMELY P.O KOTTAYAM
DISTRICT- REPRESENTED BY ITS MANAGING TRUSTEE P.A
MOHAMMED SHABEER S/O PH ABDUL SALAM, PUTHENVEEDU HOUSE
ERUMELY P.O, KOTTAYAM DISTRICT, PIN - 686509.
3 SMT. SHABANAJAZIF
AGED 40 YEARS
W/O JAZIF HAKEEM, CHATHANAIPARAMBIL HOUSE BEHIND
DHYANYA MISSION HOSPITAL, POTTA P.O THRISSUR,
PIN - 680722.
4 SRI. ABDUL HAKEEM
AGED 75 YEARS
S/O ISMAIL, CHATHANAIPARAMBIL HOUSE BEHIND DHYANYA
MISSION HOSPITAL, POTTA P.O THRISSUR, PIN - 680722.
5 SRI. VIGI VM
AGED 50 YEARS
S/O MUHAMMED VETTIYANICKAL, KANAKAPALAM P.O ERUMELY,
KOTTAYAM, PIN - 686509.
BY ADVS.
ABEE SHEJIRIK FASLA N.K
RENOY VINCENT
SHAHIR SHOWKATH ALI
CHELSON CHEMBARATHY
MUHAMED JUNAID V.
ADITH KRISHNAN.U.
2024:KER:84897
WP(C) NO. 25131 OF 2024 2
SHERIN SHERIYAR
AFEEFA NAFEESA C.C.
NANDA SURENDRAN
S.SREEKUMAR (SR.)
RESPONDENT/S:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY, 110001, PIN - 110001.
2 NATIONAL CYBER CRIME REPORTING PORTAL
REPRESENTED BY ITS DIRECTOR, (MHA PORTAL) NATIONAL
HIGHWAY - 8, MAHIPALPUR, NEW DELHI,, PIN - 110037.
3 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY HOME DEPARTMENT,
SECRETARIAT THIRUVANTHAPURAM, PIN - 695001.
4 THE STATE POLICE CHIEF
STATE POLICE HEADQUARTERS, VAZHUTHAKKAD,
THIRUVANTHAPURAM, PIN - 695010.
5 STATION HOUSE OFFICER
PUNALUR POLICE STATION CHEMMANTHOOR, PUNALUR, KOLLAM
PIN - 691305.
6 THE DIRECTOR GENERAL OF POLICE,
TELENGANA, TELENGANA STATE POLICE HEADQUARTERS,
LAKDIKAPUL RD, OPPOSITE RAVINDRA BHARATHI, AMBEDKAR
COLONY, LAKDIKAPUL, HYDERABAD, TELANGANA, PIN - 500004.
7 STATION HOUSE OFFICER
CYBER CRIME POLICE STATION, HYDERABAD, TELENGANA,
PIN - 500032.
8 THE DIRECTOR GENERAL OF POLICE
KARNATAKA, KARNATAKA STATE POLICE HEADQUARTERS, NO. 2
NRUPATHUNGA ROAD, BANGALORE , KARNATAKA, PIN - 560001.
9 THE STATION HOUSE OFFICER
CEN CENTRAL POLICE STATION BANGALORE CITY POLICE,
PIN - 560001.
0 THE DIRECTOR GENERAL OF POLICE
MAHARASHTRA MAHARASHTRA POLICE HEADQUARTERS
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WP(C) NO. 25131 OF 2024 3
SHAHIDBHAGAT SINGH MARG, COLABA MUMBAI, MAHARASHTRA,
PIN - 400001.
11 THE DIRECTOR GENERAL OF POLICE
UTTAR PRADESH, POLICE HEADQUARTERS, GOMTI ENCLAVE,
RANAPRATAPMARG, DALIBAGH COLONY, BUTLER COLONY,
LUCKNOW, UTTAR PRADESH, PIN - 226001.
12 STATION HOUSE OFFICER
RATNAGIRI RURAL POLICE STATION, KARWANCHIWADI,
MAHARASHTRA, PIN - 415639.
13 STATION HOUSE OFFICER
TOPKHANA POLICE STATION TV CENTRE, PROFESSOR CHAUK,
SAWEDI AHMEDNAGAR, MAHARASHTRA, PIN - 414003.
14 THE DIRECTOR GENERAL OF POLICE
DELHI, POLICE HEADQUARTERS, JAI SINGH ROAD, NEW DELHI,
PIN - 110001.
15 THE FEDERAL BANK
COTTON HILL BRANCH, COTTON HILL, THIRUVANTHAPURAM
REPRESENTED BY ITS BRANCH MANAGER, PIN - 695014.
16 THE FEDERAL BANK
ERUMELY BRANCHERUMELY, KOTTAYAM REPRESENTED BY ITS
BRANCH MANAGER,, PIN - 686509.
17 FEDERAL BANK LTD.,
PONKUNNAM BRANCHPEARL AVENUE BUILDING K K ROAD,
PONKUNNAM GOVT. VOCATIONAL HIGHER SECONDARY SCHOOL,
KOTTAYAM, REPRESENTED BY ITS BRANCH MANAGER,
PIN - 686506.
18 FEDERAL BANK LTD.
POTTA BRANCH, CHALAKUDY POTTA, OPPOSITE LF CHURCH,
THRISSUR, REPRESENTED BY ITS BRANCH MANAGER,
PIN - 680722.
19 THE KERALA GRAMIN BANK
ERUMELY BRANCH, KARIMPINTHODU - ERUMELY ROAD,
ERUMELI,KOTTAYAM,REPRESENTED BY ITS BRANCH MANAGER,
PIN - 686509.
BY ADVS.
MINI GOPINATH
Mohan Jacob George
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WP(C) NO. 25131 OF 2024 4
P.V.PARVATHY (P-41)(K/000036/1991)
REENA THOMAS(R-364)
NIGI GEORGE(K/1169/2012)
ANANTHU V.LAL(K/001233/2022)
SHERIN VARGHESE(K/000628/2010)
SMT. DEEPA NARAYANAN, SR. GP.
SRI.T.C. KRISHNA, DSGI IN CHARGE
SRI. JAWAHAR JOSE, SC FOR GRAMIN BANK.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) NO. 25131 OF 2024 5
JUDGMENT
The petitioners are aggrieved by the sudden freezing of
their accounts by the banks based on requisitions/intimation
received from the police. The police in turn has acted on the
basis of Cyber Crime Incident Reports filed by persons subjected
to online financial fraud/UPI fraud.
2. Learned counsel for the petitioners submitted
that this Court in Dr.Sajeer v. Reserve Bank of India [2024
(1) KLT 826] has addressed the plight of similarly situated
persons, and after elaborately dealing with the revolutionary
change in money transactions with the advent of Unified
Payment Interface (UPI for short), as also the positives and
negatives of UPI transactions in the context of Cyber crimes and
Online fraud, the writ petitions were disposed of with certain
directions. The petitioners are also seeking disposal of their
case in similar manner.
3. Heard.
4. For convenience, the directions in
Dr.Sajeer's case (supra) is extracted hereunder:-
" a. The respondent Banks arrayed in these cases, are
directed to confine the order of freeze against the
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accounts of the respective petitioners, only to the extent
of the amounts mentioned in the order/requisition issued
to them by the Police Authorities. This shall be done
forthwith, so as to enable the petitioners to deal with
their accounts, and transact therein, beyond that limit.
b. The respondent - Police Authorities concerned are
hereby directed to inform the respective Banks as to
whether freezing of accounts of the petitioners in these
Writ Petitions will require to be continued even in the
afore manner; and if so, for what further time, within a
period of eight months from the date of receipt of a copy
of this judgment.
c. On the Banks receiving the afore
information/intimation from the Police Authorities, they
will adhere with it and complete necessary action -
either continuing the freeze for such period as
mentioned therein; or withdrawing it, as the case may
be.
d. If, however, no information or intimation is
received by their Banks in terms of directions (b) above,
the petitioners or such among them, will be at full liberty
to approach this Court again; for which purpose, all their
contentions in these Writ Petitions are left open and
reserved to them, to impel in future."
5. While I am in respectful agreement with the
above directions, I also consider it apposite to scrutinise the
issue in the context of the applicable provision and the
precedents on the point. The intimation from the police, in
most of the cases, refers to Section 102 of Cr.P.C., which, no
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doubt, is the applicable provision. Hence, Section 102 is
extracted hereunder for easy reference. Here, it is essential to
note that Section 106 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, which is the corresponding provision, is also
identically worded.
"Section 102:- Power of police officer to seize
certain property- (1) Any police officer may seize any
property which may be alleged or suspected to have
been stolen, or which may be found under
circumstances which create suspicion of the commission
of any offence.
(2) Such police officer, if subordinate to the officer
in charge of a police station, shall forthwith report the
seizure to that officer.
(3) Every police officer acting under Sub-Section (1) shall
forthwith report the seizure to the Magistrate having
jurisdiction and where the property seized is such that it
cannot be, conveniently transported to the Court or
where there is difficulty in securing proper
accommodation for the custody of such property, or
where the continued retention of the property in police
custody may not be considered necessary for the
purpose of investigation, he may give custody thereof to
any person on his executing a bond undertaking to
produce the property before the Court as and when
required and to give effect to the further orders of the
Court as to the disposal of the same.
Provided that where the property seized under Sub-
Section (1) is subject to speedy and natural decay and if
the person entitled to the possession of such property is
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unknown or absent and the value of such property is
less than five hundred rupees, it may forthwith be sold
by auction under the orders of the Superintendent of
Police and the provisions of sections 457 and 458 shall,
as nearly as may be practicable, apply to the net
proceeds of such sale."
6. A reading of Section 102, makes it clear that
the police has the power to seize any property which may be
alleged or suspected to have been stolen, or which may be
found under circumstances which create suspicion of the
commission of any offence. The Apex Court in State of
Maharashtra v. Tapas D Neogy [(1999) 7 SCC 685] has
held that the bank account of the accused or any of his
relatives can be treated as "property" for the purpose of
Section 102 of the Code. Later, in Teesta Atul Setalvad v.
State of Gujarat [(2018) (2) SCC 372], the Supreme Court
also held that the Investigating Officer can issue instruction to
seize the suspected bank accounts, subject to his submitting
a report to the Magistrate concerned, as mandated in sub-
section (3) of Section 102. Thereafter, another issue arose
with respect to cases in which there was delay in reporting
the seizure to the Magistrate. This led to divergent views
being expressed by different High Courts. Some High Courts
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held that delayed reporting to the Magistrate would, ipso
facto, vitiate the seizure order; certain other High Courts held
that the delay in reporting would constitute a mere
irregularity and would not vitiate the seizure order. The issue
was set at rest by the Supreme Court in Shento Varghese v.
Julfikar Husen and others [2024 SCC OnLine SC 895]. For
that purpose, a comparative analysis of the legislative history
of Section 102 Cr.PC was undertaken. After elaborate
discussion, the Apex Court held in Shento Varghese's case
(supra) as under:-
"22.From the discussion made above, it would emerge
that the expression 'forthwith' means 'as soon as may
be', 'with reasonable speed and expedition', 'with a
sense of urgency', and 'without any unnecessary delay'.
In other words, it would mean as soon as possible,
judged in the context of the object sought to be achieved
or accomplished.
23. We are of the considered view that the said
expression must receive a reasonable construction and
in giving such construction, regard must be had to the
nature of the act or thing to be performed and the
prevailing circumstances of the case. When it is not the
mandate of the law that the act should be done within a
fixed time, it would mean that the act must be done
within a reasonable time. It all depends upon the
circumstances that may unfold in a given case and there
cannot be a straight-jacket formula prescribed in this
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regard. In that sense, the interpretation of the word
'forthwith' would depend upon the terrain in which it
travels and would take its colour depending upon the
prevailing circumstances which can be variable.
24. Therefore, in deciding whether the police officer has
properly discharged his obligation under Section 102(3)
Cr. P.C., the Magistrate would have to, firstly, examine
whether the seizure was reported forthwith. In doing so,
it ought to have regard to the interpretation of the
expression, 'forthwith' as discussed above. If it finds that
the report was not sent forthwith, then it must examine
whether there is any explanation offered in support of
the delay. If the Magistrate finds that the delay has been
properly explained, it would leave the matter at that.
However, if it finds that there is no reasonable
explanation for the delay or that the official has acted
with deliberate disregard/wanton negligence, then it may
direct for appropriate departmental action to be initiated
against such erring official. We once again reiterate that
the act of seizure would not get vitiated by virtue of such
delay, as discussed in detail herein above."
7. Thus it is no longer open for any person to contend
that the delay in complying with Section 102 Cr.P.C would
vitiate the seizure as such. This gives rise to an ancillary
question, as to the impact of non-compliance of Section
102(3), by the failure on the part of the police officer
concerned to report the seizure of bank account to the
jurisdictional Magistrate. In my opinion, this question has to
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be addressed in the light of Article 300A of the Constitution of
India, which stipulates that no person shall be deprived of his
property except by authority of law. The authority of law in
the cases under consideration is conferred by Section 102
Cr.P.C. Therefore, abject violation of the procedure
prescribed therein will definitely affect the validity of the
seizure. While on the subject, it will be profitable to refer the
well considered judgment rendered by a learned single Judge
of this Court in Madhu K v. Sub Inspector of Police and
others [2020 (5) KLT 483]. Therein, the practice of certain
police officers of directing freezing of accounts without
reporting to the Magistrate concerned was deprecated. As
rightly observed in the judgment, the police officer acting
under Section 102 Cr.P.C cannot be permitted to arrogate to
himself an unregulated and unbridled power to freeze the
bank account of a person on mere surmise and conjuncture,
since such unguarded power may bring about drastic
consequences affecting the right to privacy as well as
reputation of the account holder. The other relevant portion
of that judgment reads as under:-
"If it finds that the report was not sent forthwith, then it
must examine whether there is any explanation offered in
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support of the delay. If the Magistrate finds that the delay
has been properly explained, it would leave the matter at
that. However, if it finds that there is no reasonable
explanation for the delay or that the official has acted with
deliberate disregard/wanton negligence, then it may direct
for appropriate departmental action to be initiated against
such erring official. We once again reiterate that the act of
seizure would not get vitiated by virtue of such delay, as
discussed in detail herein above."
The learned single Judge finally held that the breach of
procedure can be considered as irregular and not illegal.
8. The above discussion leads to the conclusion
that, while delay in forthwith reporting the seizure to the
Magistrate may only be an irregularity, total failure to report
the seizure will definitely have a negative impact on the
validity of the seizure. In such circumstances, account
holders like the petitioners, most of whom are not even made
accused in the crimes registered, cannot be made to wait
indefinitely hoping that the police may act in tune with
Section 102 and report the seizure as mandated under Sub-
section (3) at some point of time. In that view of the matter,
the following direction is issued, in addition to the directions
in Dr.Sajeer (supra).
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(i) The police officers concerned shall inform the
banks whether the seizure of the bank accounts has been
reported to the jurisdictional Magistrate and if not, the
time limit within which the seizure will be reported. If no
intimation as to the compliance or the proposal to comply
with the Section 102 is received by the banks within one
month of receipt of a copy of this judgment, the banks
shall lift the debit freeze or remove the lien, as the case
may be, from the petitioners' account.
(ii) In order to enable the police to comply with
the above direction the banks, as well as the petitioners,
shall forthwith serve a copy of this judgment to the officer
concerned and retain proof of such service.
Ordered accordingly.
Sd/-
V.G.ARUN
JUDGE
Sru
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APPENDIX OF WP(C) 25131/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE LETTER DATED 29.04.2024
ISSUED BY THE 15TH RESPONDENT FEDERAL BANK,
COTTON HILL BRANCH TO THE 1ST PETITIONER
Exhibit P2 THE TRUE COPY OF THE LETTER DATED 03.05.2024
ISSUED BY THE 15TH RESPONDENT FEDERAL BANK,
COTTON HILL BRANCH TO THE 1ST PETITIONER
Exhibit P3 THE TRUE COPY OF THE LETTER DATED 22.05.2024
ISSUED BY THE 15TH RESPONDENT FEDERAL BANK,
COTTON HILL BRANCH TO THE 1ST PETITIONER
Exhibit P4 THE TRUE COPY OF THE LETTER DATED 24.05.2024
ISSUED BY THE 15TH RESPONDENT FEDERAL BANK,
COTTON HILL BRANCH TO THE 1ST PETITIONER
Exhibit P5 THE TRUE COPY OF THE PRINTOUT OF THE E-MAIL
DATED 05.06.2024 SENT BY THE 1ST PETITIONER
TO DELHI POLICE
Exhibit -P6 THE TRUE COPY OF THE PRINTOUT OF THE E-MAIL
DATED 05.06.2024 SENT BY THE 1ST PETITIONER
TO TELANGANA POLICE
Exhibit P7 THE TRUE COPY OF THE PRINTOUT OF THE E-MAIL
DATED 05.06.2024 SENT BY THE 1ST PETITIONER
TO MAHARASHTRA POLICE
Exhibit P8 THE TRUE COPY OF THE PRINTOUT OF THE E-MAIL
DATED 05.06.2024 SENT BY THE 1ST PETITIONER
TO KERALA POLICE
Exhibit P9 THE TRUE COPY OF THE SCREENSHOT OF THE MAIL
NOTIFICATION DATED 05.06.2024 RECEIVED BY THE
1ST PETITIONER IN REPLY TO EXHIBIT P5 E-MAIL
STATING THAT THE E-MAIL ADDRESS OF THE
RECIPIENT HAD BEEN DEACTIVATED
Exhibit P10 THE TRUE COPY OF THE SCREENSHOT OF THE REPLY
MAIL DATED 06.06.2024 SENT BY TELANGANA
POLICE TO THE 1ST PETITIONER
Exhibit P11 THE TRUE COPY OF THE PRINTOUT OF THE E-MAIL
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DATED 07.06.2024 SENT BY MAHARASHTRA POLICE
TO THE 1ST PETITIONER
Exhibit P12 THE TRUE COPY OF THE PRINTOUT OF THE E-MAIL
DATED 07.06.2024 SENT BY KERALA POLICE TO THE
1ST PETITIONER
Exhibit P13 THE TRUE COPY OF THE FIR DATED 01.06.2024 IN
CRIME NO. 787/2024 OF PUNALOOR POLICE STATION
Exhibit P14 THE TRUE COPY OF THE MAIL DATED 14.06.2024
SENT BY THE 1ST PETITIONER TO TELANGANA
POLICE
Exhibit P15 THE TRUE COPY OF THE SCREENSHOT DATED NIL
SENT BY MR. SYED ABDULLAH TO THE WHATSAPP
NUMBER OF THE HUSBAND OF THE 1ST PETITIONER
Exhibit P16 THE TRUE COPY OF THE PRINTOUT OF THE E-MAIL
DATED 14.06.2024 SENT BY THE 1ST PETITIONER
TO MAHARASHTRA POLICE
Exhibit P17 THE TRUE COPY OF THE LETTER DATED 03.05.2024
ISSUED BY THE 16TH RESPONDENT FEDERAL BANK,
ERUMELY BRANCH TO THE 2NDPETITIONER
Exhibit P18 THE TRUE COPY OF THE LETTER DATED 03.05.2024
ISSUED BY THE 17TH RESPONDENT FEDERAL BANK,
PONKUNNAM BRANCH TO THE 3RD PETITIONER
Exhibit P19 THE TRUE COPY OF THE LETTER DATED 20.05.2024
ISSUED BY THE 17TH RESPONDENT FEDERAL BANK,
PONKUNNAM BRANCH, TO THE 3RD PETITIONER
Exhibit P20 THE TRUE COPY OF THE LETTER DATED 22.05.2024
ISSUED BY THE 17TH RESPONDENT FEDERAL BANK,
PONKUNNAM BRANCH TO THE 3RD PETITIONER
Exhibit P21 THE TRUE COPY OF THE LETTER DATED 24.05.2024
ISSUED BY THE 17TH RESPONDENT FEDERAL BANK,
PONKUNNAM BRANCH TO THE 3RD PETITIONER
Exhibit P22 THE TRUE COPY OF THE E-MAIL DATED 10.06.2024
SENT BY THE 3RD PETITIONER TO KERALA POLICE
Exhibit P23 THE TRUE COPY OF THE E-MAIL DATED 10.06.2024
SENT BY THE 3RD PETITIONER TO CEN CENTRAL
POLICE STATION,BENGALURU
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Exhibit P24 THE TRUE COPY OF THE LETTER DATED 28.05.2024
ISSUED BY THE 18TH RESPONDENT FEDERAL
BANK,POTTA BRANCH TO THE 4TH PETITIONER
Exhibit P25 THE TRUE COPY OF THE SCREENSHOT OF THE E-MAIL
DATED 10.06.2024 SENT BY THE 4TH PETITIONER
TO CEN CENTRAL POLICE STATION, BENGALURU
Exhibit P26 THE TRUE COPY OF THE LETTER DATED 17.05.2024
ISSUED BY THE 19TH RESPONDENT KERALA GRAMIN
BANK, ERUMELY BRANCH TO THE 5TH PETITIONER
Exhibit P27 THE TRUE COPY OF THE SCREENSHOT OF THE E-MAIL
COMMUNICATION DATED 21.06.2024 BETWEEN THE
5TH PETITIONER AND CEN POLICE
STATION,BENAGLURU
Exhibit P28 THE TRUE COPY OF THE REPLY DATED NIL SENT BY
THE 5TH PETITIONER TO CEN CENTRAL POLICE
STATION
Exhibit P29 THE TRUE COPY OF THE JUDGEMENT DATED
25.09.2023 PASSED BY THIS HON'BLE COURT IN
W.P(C):12960/2023
Exhibit P30 THE TRUE COPY OF THE JUDGEMENT DATED
07.06.2024 PASSED BY THIS HON'BLE COURT IN
W.P(C):99/2023
